week five Flashcards
what was the case of Ministry of Health v Atkinson about and why was a case brought before the court
The Ministry of Health was giving subsidies to 3rd party carers of disabled children, but this was not available to parents providing care.
the parental carers took a case of discrimination based on parental status, claiming this was against the Human Rights Act 1993.
what was the result of Ministry of Health v Atkinson and what did Parliament do about it
the court found their was discrimination, Parliament overrode this decision with the Health and Disability Amendment Act 2013 which basically overturned the decision.
Parliament is able to do this because of Parliamentary Sovereignty
what is ad hominin legislation
legislation which attaches to the person, seeking to target a single person and impose some liabilities
what are the two overlaps between the judicial and legislative branches
- parliament can exercise a limited adjudicative function through parliamentary privelege, which gives parliament the ability to prosecute, judge and censure for the breach of parliamentary rules - this is a small domain
- judicial branch performs rule-making through the common law and also control the rules about common law such as stare decisis and judicial legislation (about how the common law is formed and operates)
why is the judicial creation of law not a concern for the separation of powers doctrine
judicial creation of law is incidental to the output of the decisions between parties, leading to law coming out of these disputes incidentally over time.
what is the wider Privy Council (of which the Judicial Committee of the Privy Council - highest appellate court pre 2004 - is a part of) part of and why
the UK executive - because the main business of the Privy Council as a whole is to provide advice to the Sovereign
prior to 2004, what was the connection between the Judicial Committee of the Privy Council (as part of our judiciary) and the executive
there is a clear connection between our judiciary and the UK executive
does the Privy Council advise the sovereign in relation to NZ
no, the sovereign wears a different hat when acting for NZ than they do in the UK
what is the Law Commission
an advisory body which reviews and recommends changes to the law and then reports these recommendations to Parliament and ministers
what body is the Law Commission a part of
since they are an Independent Crown Entity, they are a part of the executive
what is the overlap between the Law Commission (as part of the executive) and the judiciary
the President of the Law Commission is normally a currently serving judge - they could be President and preside on cases at the same time
(the office is not always held by a judge)
what does a Royal Commission do?
investigate a matter of public importance, where something has or is perceived to have, gone wrong and report on it
what is the overlap between a Royal Commission (as part of the executive) and the judiciary
members of the commissions can often include current or previously serving judges - they are well suited to the task of gathering evidence, weighing it up and giving some type of advice like what happens in these investigations
where are the potential overlaps between the executive and the judiciary
Royal Commission and Law Commission
is non-interference upheld between the executive and the judiciary
there are checks and balances but generally it is upheld.
Although parliament can cut across judicial decisions and established rights, and in a de facto way it is the executive (through government ministers) that actually start the ball rolling on these changes such as in Atkinson
what is a big way the judiciary keeps the executive in check
through judicial review
what is judicial review
the mechanism by which the executive can be held to account for its actions, parliament cannot be brought to court for its actions but the executive can be when a person whose rights are affected seeks judicial review for that action
why are judicial review actions limited
the common remedy is to require the decision maker to redo the decision making process while fixing whatever defect was found to exist in that decision making process, rather than deciding a particular way
judicial review is usually about ____ problems
procedural
where is there functional overlap between the executive and the judiciary
commissions & inquiries - they investigate and provide advice.
these bodies are not the same as courts - their decisions only contain recommendations and are not legally binding or enforceable
the rights and responsibilities from these recommendations have to be taken up into law and legislative policy to actually become rights and responsibilities
what are the ceremonial/formal overlaps between the executive and the judiciary
the Office of the Administrator - back up to the Governor General if they can’t do their ceremonial duties or assents (Chief Justice will step up)
Judges are appointed by the executive to open a new parliament - ceremonial
what does the doctrine of separation of powers actually do, logistically?
it does not organise government. it has a limited fit within our constitutional arrangement but it still has big important ideas. a modern understanding requires each branch to hold onto its function, but the branches don’t need to have absolutely no overlap anymore
NZ parliament is based heavily on what model of parliament
the Westminster Parliamentary System of the UK
in 1066, the Anglo-Saxons fell. which group came in from France?
Norman rulers - William the Conqueror
from what battle onwards do we have the earliest indications of a Parliament
the battle of hastings
when there were the earliest indications of parliament after the battle of hastings there was some legislative bodies called the ____ and the ____
King’s Council and Curia Regis (King’s Court)
what was the King’s Council’s and the Curia Regis’s main role
to advise the monarch on various matters and participate in a limited extent in law making
from the 12th - 17th centuries, there was a move towards including more _______ in political life rather than just the aristocracy through lineage
middle class men
the legislative bodies in the 12th - 17th centuries were under the sovereign. the king or queen had ____ ______, placing them above
Royal Prerogative
from the 12th - 17th centuries, what amount of law making power did the legislative bodies have vs the monarch
the bodies had limited legislative authority while the King or Queen had law making power by proclamation, without the consent of a representative government of the people
in the 17th century, britain was under the rule of which line of kings?
the Stewart kings
what was the idea about the monarch’s powers during the 17th century and the time of the Stewart kings?
they had a divine right to rule supreme and unchallenged which came directly to them through God
what did the people increasingly believe about the power of the monarch vs the people in the 17th century
that there should be a representative government in the king’s name and with the king’s support
in the Case of Proclamations 1611, what tension could be seen
the tension between the king and parliament
what happened in the Case of Proclamations 1611
James I tried to impose by proclamation additional taxes beyond what parliament had already levied. this was challenged.
Lord Cooke - ‘the king hath no prerogative but that which the law of the land allows him’ - the power to create of suspend laws laid with parliament rather than the sovereign
Charles I was executed in 1649 by the parliamentarians. this resulted in?
the end of the monarchy for a short time - 11 years where England operated as a sort of republic under the leadership of Oliver Cromwell
after Oliver Cromwell’s death, why was a return to the monarchy preferable and who reinstated the monarchy
because England was a mess - Charles II came back from Scotland in 1660 and the monarchy was reinstated in 1660
what idea came back in with Charles II
the God given divine rule to rule idea - in the final years of his reign (8 years) he dissolved parliament and rules on his own.
why did James II get kicked out
he was Catholic and had a Catholic heir so this was unpalatable and he also prosecuted some powerful Church of England bishops
what did James II getting kicked out lead to
the Glorious Revolution 1688 where William of Orange (Dutch) was invited to take his place. He was a foreigner but married to Mary, James II’s Anglican daughter - offering a much more palatable Anglican monarchy
what did the Glorious Revolution lead to
the signing of the Bill of Rights which firmly established that Parliament solely had the power to create laws, signalling the birth of modern Parliament as it is today - a Parliament with Supreme authority
the treaty was signed in 1840 and a year later the colonial government was created by Letter Patent, exercised by who?
a governor (acting in all times under the instruction and authority of the colonial office in britain). law making ability was reserved to Britain
what did the The New Zealand Constitution Act 1852 (UK) give NZ
gave the NZ legislature a few more rights - established representative government through a General Assembly (Parliament), bi-cameral parliament
gave that body the power to make laws for the “peace, order and good government of New Zealand”
NZ parliament could not legislate contrary to the existing laws of England, including the 1852 Constitution Act making these provisions effectively entrenched
what did the Statute of Westminster 1931 do
gave freedoms to various territories and dominions to legislate on their own behalf - NZ adopted this in 1947, giving NZ much greater authority - revoked the repugnancy provision, making NZ able to legislate on their own terms
could the UK still legislate for NZ under the Statute of Westminster
yes, but only with our request and consent
what act got rid of the ability for the UK to legislate for us
the Constitution Act 1986 - did away with the New Zealand Constitution Act 1852 (UK)
most of the Constitution Act 1986 is just a reaffirming of things that were already in existence, what is a new thing in this act?
that Parliament must meet within 6 weeks of the returning of the writs from the election
what is s10 (1) Constitution Act 1986
continued existence of the house of representatives
what is s10 (3) of Constitution Act 1986
the house of representatives is always in existence because if there was no parliament would statutes still exist?
what is s10 (4) Constitution Act 1986
establishes the link between election systems and membership within the house of representatives, confirming our parliamentarians are elected rather than appointed from a democratic process
what is s14 constitution act 1986
reminds us that parliament is a combination of the house of representatives and the sovereign
what is s15 constitution act 1986
parliament continues to have the full power to make law
ss2 - UK parliament acts passed after 1986 will not apply here in NZ
what is s16 constitution act 1986
statutory codification that the sovereign has to sign off on legislation put before them following that bill going through the house
what are the 5 purposes of parliament
- provide a good government
- represent the people
- power to raise public money and approve spending
- consider and pass legislation
- scrutinise and keep in check, to various degrees, the political executive it provides
parliament provides the g____
government
who appoints the prime minister
the governor general, acting as a constituent body of parliament not as the sovereign
how does the governor general know who to appoint as prime minister
the MP who has the majority support of the house
how do you tell who has the majority support in the house
in something like first past the post with two main parties it is clear whoever has the majority of seats in the house and from that because of party loyalty who is supported and the governor general appoints that person.
in mmp, we elect our parliamentarians who we give the power to decide between themselves a government (rather that us actually voting for a government) because the parties have to negotiate to form a coalition, the leader of which has the most support in the house and becomes prime minister
how many ministers form cabinet
20, including the prime minister, generally
cabinet ministers hold?
portfolios, of varying importance and complexity
are there also ministers outside of cabinet or just within
also outside - the prime minister picks
who actually appoints the ministers
the Governor General, but they just appoint who the Prime Minister recommends
our government is representative rather than?
directly participatory because there is just too many people to do that
what is the election manifesto
the set of principles and promises that a political party makes as to what it would do if it were given the chance to form a government
what has happened to the prominence of the election manifesto under MMP
it has declines
where does legitimacy for government come from
not through promises or general trust in politicians but it relies on a fair and democratic process being in place that everyone can participate in and then by virtue of this there is a legitimate representative government
we buy into our position in society through?
taxation
we pay taxation and in return expect to have access to?
a bundle of rights that come from being a part of a society e.g. protection from outside attack, food, water, healthcare, economic marketplace
the rights taxations gives are not?
fixed or universal
the power to take money from people (tax) should come from?
the body representative of those people
in the Westminster system, spending is authorised by parliament but is motivated by?
the political executive
what did the Wi Parata case say about the treaty of waitangi
‘legal nullity’
what are the flaws and weaknesses of the treaty
two versions in different languages with bad translation
most Maori that signed the treaty signed which version?
Maori
the latest expression of parliaments will is ?
the law - doctrine of implied repeal
what are some problems with parliamentary sovereignty
minority groups can get stepped on, Hitler’s Germany was done lawfully, laws can be aimed at a minority of one, economic stabilisation
what are diceys 3 elements of the rule of law
predominance of regular law, equality before the law and you can look to common law for all our constitutional rights
ministers of the crown must be ministers of?
parliament
the executive is answerable to?
the House of Representatives
MMP ended?
executive
who recommends the chief justice
the prime minister
who are Maori Land and Appellate Court judges recommended by
Minister of Maori Affairs
how do courts police executive action
judicial review
the legislature and judiciary overlap functions through which situations
ad hominem legislation, parliamentary privilege, judicial “legislation” - precedent, stare decisis rules etc and common law principles
what was the distant precursor to the Westminster Parliament
King’s Council
